New South Wales Supreme Court CITATION : R v Mundene [2007] NSWSC 355 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 02/03/2007, 05/04/2007 JUDGMENT DATE : 19 April 2007 JUDGMENT OF : Howie J at 1 DECISION : The offender is convicted and sentenced to a term of imprisonment with a non-parole period of 3 years 9 months and a balance of term of 3 years. The non-parole period is to date from 15 October 2006 and expire on 14 July 2010 the date upon which the offender is eligible to be released to parole. The balance of term commences on 15 July 2010 and expires on 14 July 2013. CATCHWORDS : Criminal Law - Sentence - manslaughter - death of baby by shaking. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 - s21A(3)(j) R v Callaghan v R [2006] 160 A Crim R 145 CASES CITED : R v Monroe [2003] 148 A Crim R 478 R v Hoerler [2004] NSWCCA 184 PARTIES : Regina v Keith Herbert Mundene FILE NUMBER(S) : SC 2006/1713 COUNSEL : P. Barnett - Crown P. Winch - Offender SOLICITORS : S. Kavanagh - Crown S. O'Connor - Offender IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST HOWIE J THURSDAY 19 APRIL 2007 2006/1713 REGINA v KEITH HERBERT MUNDENE REMARKS ON SENTENCE 1 HIS HONOUR: On 2 March 2007 the offender was arraigned before me on an indictment alleging that he murdered a child aged seven months. He pleaded not guilty to murder but guilty to manslaughter and the Crown accepted this plea in full satisfaction of the indictment. It was accepted by the parties that the basis of the manslaughter was an unlawful and dangerous act committed by the offender when he shook the child causing fatal injuries. The injuries were inflicted on 5 July 2005 and the child died the next day in hospital. The offender is now to be sentenced for that offence which carries a maximum penalty of imprisonment for 25 years. 2 A statement of facts was tendered as the basis upon which I am to sentence the offender. I was not given any other statements or material from the Crown brief. The facts can be summarised as follows. In October 2004 the offender became involved in a relationship with Ms Simon, the child's mother, who at that time was pregnant to another man. On 17 November 2004 Ms Simon gave birth to the child, the victim in this matter. 3 On 14 November 2004 the offender was taken into custody for an offence of dishonesty. He remained in custody serving a sentence until 13 June 2005. During his period of incarceration the relationship with Ms Simon continued by letters, telephone calls and occasional visits by her to the gaol. Throughout these communications the offender referred to the child as his son and made enquiries about his health and welfare. 4 Shortly before the offender's release, Ms Simon went to live at Taree with the child. On his release the offender joined them. The couple slept with the child on a mattress on the floor in the lounge room of the premises. At the time the offender was smoking cannabis and recommenced using heroin despite telling Ms Simon that he would not do so. 5 A week before the child's death the offender was playing with him in a rough fashion. Ms Simon remonstrated with him warning against shaking the child or roughly handling him as it could cause brain damage or death. The couple argued about the offender's handling of the child. 6 On 4 July 2005 Ms Simon left the child in the care of the offender at the home of the offender's uncle while she went to do some shopping. When she returned the child was asleep but Ms Simon disturbed him and he woke and began crying. Ms Simon and the offender argued, the offender blaming her for disturbing the child. They then returned to where they were staying. There the offender smoked cannabis and Ms Simon fed the child. Eventually the offender, Ms Simon, and the child fell asleep on a mattress on the lounge room floor. During the night the child stirred several times, crying on each occasion. Each time Ms Simon got up and comforted the child back to sleep. 7 At about 4:30 a.m. the child began to cry, waking both Ms Simon and the offender. Ms Simon tried unsuccessfully to settle the child. The offender became irritated and told Ms Simon that he was tired and she should stop the baby crying. The offender went to the bathroom. When he returned, the child was still crying and the offender began to argue with Ms Simon. She prepared a bottle of baby formula and fed the child. She then lay with him on the lounge holding him to her chest in an attempt to settle him but without success. The offender became more agitated repeatedly telling Ms Simon that she should quieten the baby. Eventually he offered to get the baby to sleep and lay down with him on the mattress on the floor. 8 Ms Simon fell asleep. However something caused her to wake and she saw the offender shaking the child. He was kneeling on the floor and holding him under the armpits with the child's back toward him. Ms Simon saw the child's head was moving rapidly back and forth. She called out to the offender to stop, saying that he was going to kill the child. The offender said that he knew what he was doing and continued to shake the child for about thirty seconds. He then dropped him onto the mattress. 9 The child was lying on his right side and Ms Simon thought that he would not be able to breathe. She asked the offender to blow into his mouth. He told her to go across the road to a neighbour's house and call an ambulance. This she did and when she returned the offender was giving the child mouth-to-mouth. The neighbour came with Ms Simon and contacted Triple 0. She relayed questions from the operator to the offender asking what had happened before the baby stopped breathing. The offender said, "I'd been playing with the baby. I put him down on the mattress and all of a sudden he stopped breathing". The offender made a similar statement to an ambulance officer who arrived at the home a short time later. 10 Despite efforts to resuscitate the child, he died the next day. Post mortem examination of the child showed that he had suffered massive brain swelling consistent with what is commonly referred to as a shake/impact injury. The child suffered fractures to a number of ribs and a fracture of the distal left femur. All of the injuries suffered by the child were consistent with the offender's conduct as described by Ms Simon. There is no suggestion that the child had injuries from any other assault upon him. The child had generally been in good health and it is possible that he was teething at the time causing him to be unsettled and crying. 11 The offender was arrested on 5 July 2005 and charged with assault. Following the death of the child he was charged with murder on 18 July 2005. He has been in custody since his arrest. 12 The statement of facts tendered contained the following paragraph: The Crown concedes that, although there is some evidence that the offender had been warned prior to the assault of the possible consequences of shaking a baby, and was warned again by Ms Simon as he shook the deceased, the offender may not have been fully cognisant of the import of these warnings, and did not turn his mind to them when shaking the deceased. This paragraph was placed in the statement of facts to indicate that the Crown had accepted a plea to manslaughter because it was not relying upon reckless indifference to human life as a basis for a charge of murder. 13 The offender was born on 9 July 1985. He has a criminal record dating from November 2003 when he was convicted in the Local Court of assaulting a police officer, resisting arrest and goods in custody. In May 2004 he was dealt with for each of those offences by the imposition of a two-year good behaviour bond with a condition that he enter into the Youth Drug Court Program. On 8 June 2005 he was sentenced in the District Court to imprisonment for offences of break enter and steal. He was released to parole from that sentence in June 2005 on conditions that he seek treatment for his drug addiction. He was on parole at the time he committed the current offence. 14 There were three psychological reports tendered on his behalf. The first was prepared by Ms Anderson, clinical psychologist, on the 11 May 2005 in relation to the offender being sentenced for break enter and steal offences. It sets out the background of the offender. He is a young man of Aboriginal race and the second of three brothers. His mother died when the offender was about five years of age and the three brothers then went to live with an uncle and aunt. They stayed there for about five or six years and during that time the offender came to know his father. However the father died when the offender was aged seven. When he was aged 11, the offender was sent to live with relatives in Townsville but he was unhappy there because he was separated from his brothers. Eventually he returned to this State and went to live with a great aunt who had the care of his older brother. This aunt gave evidence before me and I shall refer to her testimony later. 15 The offender had a disturbed schooling and eventually left in year 10. He has since leaving school been involved in various training courses in Taree. He was at one stage in a relationship with a young woman and they had a son who was at the time of the preparation of the report aged six months. The psychologist described the offender as performing in the low average to average range of intelligence. He demonstrated a good grasp of vocabulary and sound basic numeracy skills. He had become involved with drugs and at the time of the report was on a buprenorphine programme. 16 The second report was from Mr Champion and was prepared for the sentencing proceedings before me. He found the offender to be "quite an articulate man, able to express himself with confidence and at times with a better than average vocabulary". In respect to the killing of the child the report contains the following paragraphs: [The offender] indicated that he had been released from prison some three weeks prior to the alleged incident which saw him charged. He indicated that when released he had been receiving buprenorphine, but that for some reason he could not access his medication in Taree, and as a result had periodically accessed buprenorphine and methadone illicitly, to try to cope with withdrawal symptoms. He indicated that he had also been abusing cannabis during this period, for instance indicating that he had used a "stick" that is about 15 cones on 4.7.05, though previous use may have been higher than this, there having been on his account a long-term history of heavy cannabis abuse. I note that [the offender] denied taking Endep (antidepressant). In relation to the night of 4.7.05-5.7.05, as indicated [the offender] indicated that he had used a stick of cannabis on 4.7.05. He indicated that he was "hanging out" and suffering withdrawal symptoms as he had no money to access buprenorphine or methadone; and as a result had had perhaps 10-20 minutes sleep during the night, having spent the night playing with the computer and listening to music. He spoke of having experienced a headache with a focus behind the eyes, he reported a history of such headaches……… 17 No doubt because of comments made by Mr Champion in his report about possible neurological abnormalities, the offender was referred to a neuropsychologist, Dr Pulman. Her report contains a background of the offender consistent with that given in the earlier reports. The offender denied any difficulties with alcohol but reported smoking cannabis from the age of 11 and using that substance up until his incarceration for this offence. He used heroin from the age of 16 and at the age of 19 was injecting it twice a day. He has also used cocaine. He attended drug and alcohol programs both at Nowra and in Cessnock but returned to using drugs on each occasion. He has been prescribed an antidepressant that he has been using for about 12 months. Testing of the offender indicated that his overall intellectual functioning fell within the Average range and he had intact intellectual and cognitive abilities. Personality assessment tests indicated that he had symptoms of Major Depressive disorder, anxiety and drug dependence. 18 Of course all manslaughter offences are serious involving as they do the loss of a human life but it is particularly so with a very young child. Here the act causing the death of the deceased child was deliberate and, although there was no intention to injure the child, the act was one objectively very likely to cause serious injury to such a young child. It was an isolated incident of anger against the child over a very short period of time and as a result of his frustration with the child's frequent crying. I believe that some of the applicant's irritation, which resulted in arguments with Ms Simon about the child in the days leading up to his death, were due to the applicant's use of drugs in order to cope with withdrawal symptoms. I note, to his credit, the offender tried to revive the child after the offender came to his senses. 19 General deterrence is an important consideration in sentencing for such matters even though they often occur on the spur of the moment and in stressful situations where the person is not always conscious of the results of their actions or the force being used. But the Court must denounce any violent act to a young child and send out the message that it is a serious criminal act that will result in a heavy sentence if the child is seriously injured let alone killed. 20 The offence is aggravated by the fact that the offender was in a position of trust to the child, acting very much as his father and treated as such by Ms Simon. The child was very young and particularly vulnerable. The offender was on parole. That however is not a very significant aggravating factor in this particular case because it did not relate to an offence of violence and the act was a reactive one to a situation of stress. But it was a condition of his parole that he continued treatment for his drug abuse. His use of cannabis and other illegally obtained drugs was in breach of his parole. However, the Crown accepted that his inappropriate behaviour with the child was to a substantial degree a reflection of his lack of experience with a child of that tender age and the offender's immaturity. The charge itself accepts that the offender did not foresee the prospect of death or intend to cause serious injury to the child. I also accept that he did not have an awareness of the serious injury that he could cause the child by shaking him. However, contrary to submissions made on his behalf, I do not believe that s 21A(3)(j) of the Crimes (Sentencing Procedure) Act has any application to the sentencing of the offender. 21 He has had an unfortunate and unstable background because of the death of his parents and his separation from his brothers for a period. However he was fortunate to have his aunt to support him. As I have noted she gave evidence before me. The offender came to live with her when he was aged 13 or 14. He stayed with her for about two years. However he drifted into an Aboriginal settlement near Taree where there were many young males who abused alcohol and drugs. In was probably inevitable that the offender would end up with a significant drug problem that has brought him into trouble with the law. The aunt supports him with money while he is in custody. She is keen to assist him when he is released. 22 I am told that the offender is on protection but I know nothing about why he is there or the actual conditions upon which he is being held. I have no information as to whether his sentence will be harsher by reason of his custodial situation. 23 There is little doubt about his contrition and remorse over the death of the child. But there must be doubts about his prospects for rehabilitation so far as his use of illegal drugs is concerned when he continued using them after his release on parole and notwithstanding promises that he had made to Ms Simon. However, he is still a young man of average intelligence and unfortunately he was only released from prison three weeks before he was rearrested. Therefore, he had no real opportunity to obtain support from the parole service. This indicates that I should find special circumstances to give him a further chance to address his drug problem. 24 There is a victim impact statement before me as to the effect upon the mother of the loss of her child. I cannot increase the sentence to be imposed upon the offender by reason of the dreadful tragedy and suffering that he has caused his former partner. To an extent she feels responsible because of what she sees as her misplaced trust in the offender. His breach of her trust is a matter I can and will take into account. Otherwise I can only indicate that the Court understands her suffering and it is one of the reasons why manslaughter is generally considered a serious offence because it involves the loss of life normally of persons who are loved by one or more members of the community. But it is as much a crime against the general community as it is against her and that is why the Court must impose stern punishment against the offender notwithstanding his youth and sad background. 25 The offender should receive a discount of 20 per cent for his plea. It was on offer immediately after his committal to this Court but rejected by the Crown until shortly before the offender was arraigned before me. A question arises as to the commencement date of the sentence I impose upon him because he is presently serving the balance of parole. In Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145 it was held that a sentencing court has a discretion as to when to commence a sentence where the offender is serving the balance of parole. His parole was revoked by reason of the commission of this offence but as I have indicated he was using drugs in breach of his parole. The Crown submitted that I should not backdate the sentence so far as to impact upon a sentence of 9 months that he received for an offence committed while in custody. That sentence was dated from 19 May 2006 although the offender re-entered custody on 15 July 2005. Notwithstanding the Crown's submission, I intend to backdate this sentence to 15 October 2006 to reflect the principle of totality. It will also be relevant to a finding of special circumstances that the offender will have been in continuous custody since 15 July 2005. 26 I have been referred to a number of cases on manslaughter of young children even though it has been noted that it is difficult to find an appropriate range because the offence is relatively rare: R v Hoerler [2004] NSWCCA 184. Despite being referred to statistical information I do not find it of any great assistance even as a guide. However, I have been referred to a number of sentences imposed in this Court for offences of a similar type although of course they each represent a discretionary judgment based upon the particular facts of each matter. Many, if not all of them were reviewed by O'Keefe J in R v Monroe [2003] NSWSC 1271; 148 A Crim R 478. They do indicate a general guide as to what might be an appropriate sentence and it is important for there to be a consistent approach as far as factual differences will allow. I note most of the persons sentenced for this type of offence have been on protection. 27 The offender is convicted and sentenced to a term of imprisonment with a non-parole period of 3 years 9 months and a balance of term of 3 years. The non-parole period is to date from 15 October 2006 and expire on 14 July 2010 the date upon which the offender is eligible to be released to parole. The balance of term commences on 15 July 2010 and expires on 14 July 2013. The effect of this sentence is that the offender will have spent 5 years in gaol before he can be released to parole. ********** 19/04/2007 - Edit error - Paragraph(s) 1 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.